By the Content of Their Character

Glenn Ricketts

As our members and readers know, NAS opposes race and group preferences of any kind. That’s because like Martin Luther King, Jr., we believe in evaluating people across the board by “the content of their character,” not pigeonholing them according to group association. This means that faculty hiring, student admissions, scholarship awards or any aspect of the academic enterprise should be guided by individual merits without regard to racial, ethnic and sexual criteria, or any other a priori ascriptive criteria. That includes some recent proposals for giving preferences to male undergraduate applicants. Nope, no preferences based on group identity however it’s defined, period.  That’s been the NAS position since our founding in 1987, and we’re sticking to it.

It hasn’t been an easy fight. Most of the academy’s institutional machinery has been, and remains, heavily stacked against us. Race-based affirmative action and its surrogate “diversity” are ensconced in the marrow and sinews of academia at every level, encompassing much more than just hiring and admissions policies. College presidents are uniformly, eagerly, enthusiastically committed to “diversity,” and they frequently exhort everybody else to get with the program. Lots of books are available to assist in the task, along with innumerable seminars, workshops, guest speakers, deans of “diversity,” mandatory training sessions and a slew of coercive incentives to prod your concurrence. If you’re an aspiring college applicant, you may well be asked how you will enhance your target school’s “diversity.” If you’re a junior faculty member, it can even figure in your prospects for getting promoted or being awarded tenure. (1,2 )Diversity rules, that’s axiomatic.

But despite these odds, we’ve still managed to rack up some modest achievements over the years:

  • We have shaped the debate through publishing and public discussion. We’re the only academic organization that provides legitimate counterpoint on race preferences.   We’ve done so through regular press releases (here’s the most recent one), op-ed commentary, media interviews, regular newsletter features and many articles appearing in Academic Questions. In addition, several of our national conferences have featured genuine debates and critical appraisals of race-based affirmative action that have been strictly off limits for most other academic organizations. 
  • We’ve been involved in several state-level ballot initiatives, giving voters the opportunity to speak on the use of preferences in hiring or admissions. So far, we’ve seen success in California, Arizona, Nebraska, Washington and Michigan. The centerpiece was the 1996 enactment - over vehement academic and media opposition - of Proposition 209 in California. Thanks to the tireless efforts of our state affiliate’s leaders, voters resoundingly affirmed that they did not want preferences of any kind to figure in their state’s public agencies and institutions. This was a huge victory in a bellwether state, and has inspired others to follow suit. Note what happens, by the way, when the question of preferences is actually placed before the voting public. No one ever voted affirmative action policies in, needless to say, but the public seems more than eager to vote them out whenever they’ve had the opportunity. It’s not hard to figure out why supporters of preferences are so fiercely opposed to ballot initiatives: they know that they’ll lose.  
  • The primary battleground over affirmative action has been in the federal courts, and we’ve commissioned or joined numerous briefs amicus curiae, in cases involving preferences at colleges or universities. Recently, we signed onto this one filed with the U.S. Supreme Court by the Pacific Legal Foundation. The brief challenges the use of racial preferences in undergraduate admissions at the University of Texas, Austin.   The program was upheld by the Fifth Circuit Court of Appeals, and we’re currently awaiting the U.S. Supreme Court’s decision on granting certiorari.  We hope that it does. Big stakes are in play: the brief asks the Court to reconsider its allowance of “diversity” in Grutter v. Bollinger, a 2003 case centered on admissions policies at the University of Michigan’s law school  (We submitted a brief in that case as well). We’re hoping that if the court accepts the appeal, it will at least trim back or clarify its unfortunate ruling in this caseBetter still, of course, would be the abandonment of the Grutter “diversity” standards altogether, but that’s probably a wish too far. 
  • We’ve done a lot of empirical spade work over the years and have published a number of studies and reports analyzing the race-based admissions policies at selected colleges and universities, starting with this one in 2001. Perhaps our most ambitious undertaking in this regard, however, came with this multi-year survey of race as a factor in undergraduate admissions policies at selected public institutions. Working with our state affiliates and our friends at the Virginia-based Center for Equal Opportunity, we presented public information requests to 66 schools in various states, asking that they provide us with statistical data about their incoming freshman classes in designated years. A number of them ignored the request, state public disclosure laws notwithstanding. (It never ceases to amaze, how many academic institutions apparently feel entitled to disregard laws that they don’t like). But our research did bear fruit, even if not to the extent that we had sought. Thus, a significant number of responding schools, contrary to their official policy declarations, clearly did weigh race far more heavily than other factors, as illustrated in this 2004 study prepared for our Virginia affiliate.   In fact, the data here were so compelling that the federal Department of Education’s Office for Civil Rights used them in an investigation of admissions policies at the College of William and Mary School of Law. In 1996, we commissioned the Roper Center to conduct a national survey (available in print version) of faculty attitudes toward race and sex-based hiring practices, in which nearly two-thirds of the respondents indicated that they would support a ban on such policies, similar to the ones approved by California’s voters in Proposition 209. In stark contrast to the lack of public dissent on most campuses, it was obvious that a significant segment of the faculty population sampled didn’t approve of the preferential hiring policies imposed by their administrations. It’s an exercise we’d like to reprise, since we suspect an updated version would produce similar results. 
  • We owe a great deal to the dogged efforts of individual members, whether in sponsoring voter initiatives, providing hard-to-get data, writing op-ed pieces for the local or national press, sending us suspiciously-worded job descriptions that don’t circulate off-campus, or blowing the whistle on all kinds of bureaucratic shenanigans that would otherwise never see daylight.  See, for example, the intrepid work of Professor Carl Cohen at the University of Michigan, or of Jan Blits and Linda Gottfredson, the leaders of our Delaware affiliate. 

​That’s a brief run-down of our accomplishments to date.  Hopefully, we’ve made a difference.


And the fight continues. What can we expect, looking to the future?  Certainly the “diversity” phalanx still bestrides the academy, and that won’t soon change. It’s entrenched and fortified, especially within personnel offices and the ranks of senior administrators, including those increasingly ubiquitous deans of “diversity.” In California, where such deans abound, that means that at public colleges and universities, there are people pulling hefty salaries whose job consists of circumventing the state’s antidiscrimination laws. “Diversity” can also count on the raucous support of various constituent groups on campus, usually ethnic or multicultural studies programs, along with residence life directors and activist student groups. At any rate, they all have a substantial material as well as an ideological interest in the mix, and are hunkered down to defend the status quo.   They aren’t going to surrender or change their spots, so we know what we’re up against. 


At the same time the issue of preferences has become more visible, and its academic guardians probably sense that significant sectors of public opinion aren’t quite as bullish on affirmative action: they can’t have forgotten that string of defeats at the ballot box, or that other referenda are currently in the works. Maybe that’s why they’ve lately become so shrill and frantic in their defense of the fortress. Just look at the reaction that some of the recent student-sponsored “bake sales” have aroused on a few campuses. Indeed, it can get downright thuggish, as things did recently at the University of Wisconsin. Especially prominent in this regard has been BAMN, (By Any Means Necessary) which lives up to the acronym’s tone by staging aggressive protests and public confrontations on various campuses to defend affirmative action and silence its critics. And while campus authorities don’t hesitate to send in the US Cavalry to deal with student “bake sales,” they’re strangely circumspect in response to BAMN’s roughhouse tactics.  So the affirmative action establishment is still in the driver’s seat, but they’re obviously running scared as well. We’ll certainly continue working to heighten those anxieties. At any rate, those are the most visible and relatively predictable features of the affirmative action machinery in much of the contemporary academy.   


But there will also be surprises, since it’s impossible to anticipate sudden edicts from the federal regulatory labyrinth, quirky judicial decisions, or policy changes coming on the heels of shifting political alignments and electoral outcomes. You can really never know what to expect; on rare occasions the news has actually been very good. Contrary to expectations all around, California governor Jerry Brown in October vetoed SB 185, a bill which would have gutted the ban of hiring preferences ratified by the state’s voters in Proposition 209. Brown’s veto message suggests that the work of our California affiliate leaders (see their letters to each house of the state legislature here and here) persuaded him that he’d be opening the door to endless confusion and litigation. We didn’t see this one coming at all, and heartily applauded Brown’s decision.


But that’s not how it usually works.  Case in point is the Obama administration’s new guidelines for increasing racial “diversity” on college campuses and K-12 schools, issued this month.   Sponsored jointly by the Departments of Justice and Education, the criteria set forth in these documents are breathtaking in their departure from previous norms and most existing judicial precedents. In these “guidelines,” the administration actually seems to be offering advice to college admissions officers on how to evade existing legal and judicial restraints. Since most of them have already been doing that anyway, it’s scary to anticipate how far they’re likely to run now they’ve essentially been given carte blanche.  Well, you might think, at least the courts are there, since it’s hard to see how the new guidelines will withstand judicial scrutiny. 


But we won’t bet the farm here either, since the judiciary has also turned up a wild card on more than one occasion. We’re still marveling at last summer’s ruling by a panel of the U.S. Sixth Circuit Court of Appeals holding the voter-approved Michigan Civil Rights Initiative is unconstitutional. Why? Try this: because MCRI’s ban on race discrimination violates the U.S. Constitution.  Say what!?  Yes, that was the appeals panel’s bizarre conclusion. And while we hope that the U.S. Supreme Court steps in to rectify this bit of judicial creativity, we’re not taking anything for granted there, either. The Court hasn’t yet issued certiorari in the Fisher case, and we’ll undoubtedly see a deluge of briefs from academic precincts arguing that it’s no longer necessary, since the Obama administration has “clarified” things satisfactorily. But even if the Court does agree to rule in Fisher, there’s no telling what the outcome might be, except that the justices will probably be closely divided. The 2003 decision in Grutter v. Gratz  - a major setback for opponents of preferences - came on the heels of a steady series of victories.  Following the court’s apparent consistency in cases such as Richmond v. Croson in 1989 and Adarand v. Pena in 1995, the smart money, including supporters of racial preferences, had every reason to expect that it would follow suit in Grutter. It didn’t. And while there’s reason to hope for a course correction in light of the more recent ruling in Ricci v. DeStefano, (not college admissions, true, but still a big win for opponents of preferences) the future is impossible to predict. 


But no matter what uncertain twists in the road lie ahead, the National Association of Scholars will continue to oppose racial, ethnic or group-based preferences of any kind. Martin Luther King had it exactly right: genuine equal opportunity will only be a reality when we can cease being distracted by skin color, religion, ethnicity or other arbitrary and irrelevant criteria. That vision has always been central to our organizational mission as well, and we’ll be staying the course.

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